1. The present Appeal is filed by the Appellant under Section 19 of the Consumer Protection Act, 1986 against order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the “State Commission”) in Complaint No.41 /2012 dated 03.10.2016.
2. The case of Respondent No.1/Complainant is that a tripartite agreement for purchase of flat No.D-302 measuring 980 sq. ft. of super built area, on 3rd floor and one car parking space in the complex ‘Pushpakalay’, Mouja Shadarpur, P.S. Barasat, for a total consideration of Rs.13,75,000/- was entered on 24.03.2010, between the Complainant, land owners/Opposite Parties No.1 to 11 and Opposite Party No.12/Developer. Respondent No.1 paid a sum of Rs.2,75,000/- at the time of entering into the agreement and thereafter Rs.68,750/- on 28.07.2010. The due date of possession was August, 2011 extendable to a six months period as per the agreement. By a letter dated 20.08.2010, the Appellant/Opposite Party No.12 cancelled the agreement unilaterally. Hence Complaint was filed with the following prayer: -
“a. For an order commanding the opposite parties to execute and register a deed of conveyance in terms of the agreement dated 24.03.2010 in favour of the petitioner in respect of the concerned flat by handing over the flat as described in the schedule below;
b. For an order commanding the opposite parties to accept the balance consideration as per agreement dated 24.03.2010 and to handover physical possession of the flat fully mentioned in the schedule below;
c. For an order appointing a special officer to execute deed of conveyance in favour of the petitioner in respect of the flat fully mentioned in the schedule below in the event of the opposite parties failed to execute and register the deed of conveyance;
d. Alternatively a decree be passed for a sum of Rs.24,49,000/- against the opposite parties and in favour of the petitioner towards harassment and mental agony, cost, damages, compensation as actual financial loss as per paragraphs No.13;
f. Such other relief or reliefs as your lordship may deem fit and proper.”
3. The Opposite Party challenged the maintainability of the Complaint on the ground that the agreement between the parties was an unregistered document. On 22.06.2010, Opposite Party No.12 wrote letter to the wife of the Complainant asking her to make payment of Rs.2,69,000/- at the earliest. On 22.05.2010, Appellant/Opposite Party No.12 wrote letter asking for payment of Rs.25,000/- against proportionate electric charges. Again on 09.08.2010, Appellant/Opposite Party No.12 wrote a letter to the wife of the Complainant asking her to make payment of Rs.1,53,850/- within seven days from that date. As the payment was not made, on 20.08.2010, the Appellant/Opposite Party No.12 cancelled the agreement.
4. The State Commission after hearing learned counsel for the parties, allowed the Complaint against Opposite Parties No.1 to 11 without contest and on contest against opposite party No.12/Appellant with cost of Rs.10,000/-. It ordered as follows: -
“That the complaint is allowed exparte against OP nos. 1 to 11 without costs and on contest against OP no.12 with costs of Rs.10,000/-.
The OPs are jointly and severally directed to execute the Deed of Conveyance and hand over possession including completion certificate of the part – I property as mentioned in the petition of complaint within one month from the date of the order on payment of balance consideration amount as per terms of the Agreement. The OP no.12 is also directed to make payment of compensation of Rs.1,00,000/- in favour of the complainant.
The amount of compensation and litigation costs aggregating Rs.1,10,000/- must be paid within one month from date otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation.”
5. Aggrieved by the order of the State Commission, Opposite Party No.12/Appellant filed the present Appeal.
6. Heard learned counsel for the parties and carefully perused the record. Admittedly, Respondent No.1/Complainant paid part consideration amount of Rs.3,43,750/- out of a total consideration of Rs.13,75,000/-. A tripartite agreement was entered between the Complainant/purchaser, land owners and the developer. Whether the said agreement was duly stamped or not, should not come in the way of the relationship between the developer and the consumer, which was that of a service provider and a consumer. Complaint was, therefore, maintainable under the provisions of Consumer Protection Act, 1986. The agreement was signed for a construction linked plan and Respondent No.1/Complainant paid to the developer part consideration of Rs.3,43,750/-. Any further delay in payment by the flat purchaser is covered by clause 22 of the agreement, which provided that the power of termination shall not be exercised by the developer without giving due notice indicating specific breach/breach of terms & conditions and giving reasonable time to the flat purchaser to remedy the same. The Appellant/Developer did not give any opportunity and due notice to Respondent No.1/Complainant regarding cancellation of the agreement and had unilaterally cancelled the said agreement. The State Commission held that there was deficiency in service on the part of the developer and it also reflected adoption of unfair trade practice.
7. The due date of possession as per the agreement was February, 2012 and this project seems to be one of the few cases in the recent past which was completed around the completion date. The completion certificate is dated 13.04.2012. The case of the Appellant is that timely completion of the project needed payments of instalments on time, which is a very valid reason for demanding timely payments. The Complainant failed to make payment in time and as such twice notices were issued, after which only the allotment had been cancelled. The Complainant paid only the agreement amount for a 3 BHK flat and further payments had not been made. Out of a total amount of Rs.13,75,000/-, only a part payment of Rs.3,43,750/- was paid. The Complainant had a payment crisis and to resolve the same he had sought conversion of his booking from 3 BHK to 1 BHK flat. The Complainant, vide his email dated 29.08.2010, specifically stated that the Complainant had difficulties in payments for 3 BHK flat and instead wanted to purchase 1 BHK flat. But since his terms were not acceptable, the Appellant did not agree to the request. The Complainant initially booked two flats and then entered into an agreement for one flat.
8. From the above, it is seen that the Appellant failed to give due notice before cancellation of the flat on the one hand and the Complainant too defaulted in making timely payments. It is unreasonable to expect, having not paid the instalments in tim
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e, the Appellant/developer would keep waiting for the Complainant to tide over his financial crises and hold the flat endlessly beyond the completion of the project on 13.04.2012. The learned Counsel for the Complainant admitted delay in payment and the learned Counsel for the Appellant stated at the bar that the flat had already been sold out. 9. In the interest of justice, the Appellant is directed to refund the entire amount deposited by Respondent No.1/Complainant alongwith simple interest of 10% p.a. from the dates payments were made till its realization and an amount of Rs.25,000/- be also paid by the Appellant to Respondent No.1 towards litigation cost, within a period of 45 days from the date of this order. The Appeal is disposed of on the above lines.